Fishblatt v. Atlantic City

• Decision Date: 02 December 1909
• Citation: 174 F. 196
• Parties: FISHBLATT v. ATLANTIC CITY.
• Court: U.S. District Court — District of New Jersey

174 F. 196

FISHBLATT v. ATLANTIC CITY.

United States Circuit Court, D. New Jersey.

December 2, 1909

Harry Wooten (Gilbert Collins, of counsel), for the motion.

Clarence L. Cole (John C. Bell, of counsel, and Emil Rosenberger, on the brief), opposed.

RELLSTAB District Judge.

The proceedings removed into this court were instituted by Atlantic City before a justice of the Supreme Court of the state of New Jersey, under the statutes of said state, for the purpose of condemning and taking a strip of land owned by Isabella S. Fishblatt. Commissioners to estimate the damages for the taking of such property were appointed, and on the coming in of their report an appeal was taken by the owner to the Atlantic circuit court, of said state, and thereupon she removed the entire proceedings into this court.

Such proceedings constitute a suit of a civil nature, as contemplated by Act March 3, 1875, c. 137, Sec. 1, 18 Stat 470, as amended by Act March 3, 1887, c. 373, Sec. 1, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, Sec. 1, 25 Stat 433 (U.S. Comp. St. 1901, p. 508; 4 Fed.St.Ann.p. 265), and are removable to the United States Circuit Court by the landowner, if the necessary jurisdictional facts exist. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462; Mason City R.R. Co. v. Boynton, 204 U.S. 570, 27 Sup.Ct. 321, 51 L.Ed. 629.

The matter in dispute exceeds in value the statutory minimum of $2,000, and the only question on this motion to remand is whether the record discloses the requisite diversity of citizenship. The burden of proof to show this jurisdictional fact is upon the party seeking the aid of this court. 18 Enc.Pl. & Pr.p. 297.

The petition for removal alleges that 'the controversy in said action, and every issue of fact and law therein, is wholly between herself, a citizen of the state of Pennsylvania, and Atlantic City, New Jersey, a municipal corporation of New Jersey. ' This is not conclusive. Union Terminal Ry. Co. v. Ch. B. & Q.R. Co. (C.C.) 119 F. 209.

The record brought up with the petition shows the contrary. It evidences that the Camden Safe Deposit & Trust Company, a corporation of New Jersey, holds a mortgage upon the premises sought to be taken in these proceedings, and that Isabella S Fishblatt is the owner thereof. See pages 8 and 65 of the typewritten record. In order to remove a cause from a state court into a federal court, upon the ground of diversity of citizenship, the defendant, or, if there be more than one defendant, all the defendants, must be nonresidents of the state wherein the suit is brought, or in case there is more than one defendant, and one of them is a citizen of the state in which suit is brought, then the party removing the cause must show, not only that he is a citizen of another state but also that there is 'a controversy which is wholly between citizens of different states, and which can be fully determined as between them,' and that he is 'actually interested in such controversy.' See Act March 3, 1875, c. 137, Sec. 2, 18 Stat. 470 (U.S. Comp. St. 1901, p. 509; 4 Fed.St.Ann.p. 312).

This separable controversy must be such that complete relief may be afforded the parties (of diverse citizenship) interested therein without the presence of any of the resident defendants. 18 Enc.Pl. & Pr. 209-211. In this cause, if the Camden Safe Deposit & Trust Company is a citizen of New Jersey, the cause is not removable, because the controversy is not the separable one contemplated by the statute. In condemnation proceedings such as these, the land and all rights therein are taken (P.L.N.J. 1894, p. 146), and if the mortgage covers all or any part of such property, both the mortgagee and the owner of the equity of redemption are indispensable parties to the suit. Each has an interest in the whole covered by such mortgage. No part of such mortgaged premises can be taken from one party without affecting the others' estate. A lienholder, in a controversy over the taking of the fee, cannot be separated from the owner of the equity of redemption. Id. pp. 221-222; Foster's Fed. P. (4th Ed.) pp. 1494-1497; Bissell v. Canada & St. L. Ry. Co. (C.C.) 39 F. 225.

The contention that the mortgagee was not a party to the proceedings on appeal to the state court, and therefore is not an indispensable party to the proceedings removed into this court, is not tenable. Under the statutes of New Jersey the name and interest of the mortgagee, as well as of the owner or occupant, must be set out in the petition invoking the powers of eminent domain. The mortgagee was entitled to notice of the hearing on such petition and before the commissioners after their appointment. It had the right to appeal from the report of such commissioners, and is entitled to at least a part of the award. P.L.N.J. 1900, p. 79, Secs. 2, 3, 5, 8, 14; P.L. 1902, pp. 284, 319, 320, 322, Secs. 70, 71, 74, 79; P.L. 1909, p. 225.

That the mortgagee did not appear before the commissioners, and did not become a party to the appeal in the state court, does not make it any less an indispensable party on removal to this court. It could be made a party to such appeal on its own application. P.L.N.J. 1902, p. 323, Sec. 80; P.L. 1900 p. 83, Sec. 10. If the mortgagee's interest continued after the appeal, it was in the same position as the owner to remove the cause into this court, if the necessary jurisdictional facts were made to appear. If the mortgagee removed the cause, the owner would be an indispensable party. Bissell v. Canada, etc., Ry. Co., supr...